Senoia swats back at unusual lawsuit

Senoia city attorney Drew Whalen has filed a response to the March 15 lawsuit filed in Coweta County Superior Court by resident Don Rehman against the mayor and city council over a city ordinance that he maintains amounts to a requirement that all males within city limits be required to possess one ounce or more of marijuana. Whalen in the response said the city ordinance making possession of less than an ounce a misdemeanor is not in violation of state law and that Rehman is asking the court for an advisory opinion on what in his mind is a political issue or question.

Whalen in the response cited a number of reasons why Rehman’s suit was baseless. One of the areas addressed by Whalen was the constitutionality of the city ordinance.

“(Current Georgia law) is a general law granting jurisdiction to the municipal court of any municipal corporation to try and dispose of cases where the person is charged with the possession of one ounce or less of marijuana if the offense occurred within the corporate limits of such municipality,” said Whalen.

Whalen said Rehman, at best, is asking the court for an advisory opinion on what in his mind is a political issue or question.

“One cannot create the requisite controversy simply by filing a lawsuit. Even if the issue raised by (Rehman) were of academic interest, he would not be entitled to the relief requested,” Whalen said citing case law.

In other remarks in the response, Whalen said Rehman’s petition fails to conform to state law and, “is rambling, disjunctive and a political diatribe incapable of being answered by a specific response to individual (allegations) found in individually-numbered paragraphs.”

Rehman in his March 15 filing said at issue is city ordinance Section 46-7 that pertains to possession of less than one ounce of marijuana.

Possession of less than one ounce of marijuana is a misdemeanor violation under state law, Whalen said. Georgia law allows certain misdemeanors, such as possessing less than an ounce of marijuana, to be tried in city court. Possession of more than an ounce of marijuana is a felony in Georgia and is not tried in city courts, Whalen said.

Rehman contends that the wording of the ordinance essentially mandates that all males within the city limits must have in their possession one ounce or more of marijuana. Obeying the ordinance as written would make criminals out of law abiding citizens, the suit said.

re0046
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Reply to "thcomments, "12b True", and "Social Realist"

Gentleman and/or Ladies, I know not which. I just thought I'd leave an entry here for historical purposes, since you hid behind anonymity making all sorts of nasty remarks about me.

When the lawsuit was appealed from the Coweta County Superior Court in Newnan, to the Supreme Court of Georgia, The City of Senoia's Attorney filed a Motion to dismiss the lawsuit as frivolous so as to get me fined and have to pay all the City's Supreme Court of Georgia Costs. Subsequent to that, The Supreme Court of Georgia Justices ruled that I could file a brief in excess of the page limitations; they then granted me, even though I am not an attorney, the privilege of presenting myself before them in oral argument of my case. Then they denied the City's Motion to Dismiss and fine me for frivolous appeal, causing the City of Senoia to have to suffer the hundreds, probably thousands, of dollars loss in Supreme Court of Georgia attorney and court expenses.

I have a feeling but we will never know, that the Justices were sending an unwritten message to the City that they should have either nullified the poorly worded Marijuana Ordinance or reworded it properly at a cost of only about 30 minutes time and about $200 cost to publish, instead of fighting the battle all the way up to the highest Court in the State of Georgia. We will never know if that was the Court's behind the scenes motivation in not dismissing my Appeal and fining me for any frivolous appeal; but in any event the City lost hundreds, maybe thousands of dollars by stubbornly fighting the issue. Sure I lost at the Supreme Court of Georgia; but here is what the Court said in its final order:

FINAL COPY
294 Ga. 71.

S13A1605. REHMAN v. BELISLE et al.

THOMPSON, Chief Justice.

Appearing pro se, plaintiff brought this action against defendants, the
mayor and councilmen of the City of Senoia, seeking a writ of mandamus, or,
alternatively, a declaration that a city ordinance is “ill conceived, confusing,
detrimental and unconstitutional” and should be repealed. The ordinance states:
“It shall be unlawful for any person to have in his possession less than one
ounce of marijuana.” 1
1 Plaintiff posits the ordinance can be read so as to make it lawful for men, but not women, to be in possession of more than one ounce of marijuana.

Following a hearing, the trial court dismissed plaintiff’s
petition, finding, inter alia, the court lacked jurisdiction of the person of
defendants due to lack of service, and the petition failed to state a claim for
relief. This appeal followed.

1. The trial court correctly dismissed the petition because plaintiff, who
attempted to serve defendants himself by leaving copies of the petition for them
at city hall, failed to perfect service upon any defendant pursuant to OCGA § 9-
11-4, and defendants timely raised insufficiency of service as a defense. Seabolt
v. Edghill, 192 Ga. App. 715, 716 (386 SE2d 376) (1989). The defect in service
was not cured by the fact that defendants had actual knowledge that the petition
had been filed against them. Adams v. Gluckman, 183 Ga. App. 666, 667 (359
SE2d 710) (1987). Moreover, defendants did not waive insufficiency of service
of process by participating in the hearing below. Garrett v. Godby, 189 Ga.
App. 183, 185 (375 SE2d 103) (1988).

2. Even if service had been perfected, it cannot be said the trial court
erred in dismissing the petition because plaintiff, who has never been charged
or even threatened with violating the ordinance, does not have standing to
challenge the constitutionality of the ordinance. Manlove v. Unified Govt. of
Athens-Clarke County, 285 Ga. 637, 638 (680 SE2d 405) (2009).

3. The trial court did not err in assessing attorney fees and expenses of
litigation under OCGA § 9-15-14 (a) and (b). See Haggard v. Bd. of Regents,
257 Ga. 524, 527 (360 SE2d 566) (1987).

4. Defendants’ motion to impose a penalty against plaintiff for filing a
frivolous appeal in this Court pursuant to Supreme Court Rule 6 is denied.

Judgment affirmed. All the Justices concur.

Decided November 4, 2013.
Mandamus. Coweta Superior Court. Before Judge Blackmon.
Donald I. Rehman, pro se.
Andrew J. Whalen III, for appellees.
****************************************
So "thcomments", "12b True" and "Social Realist" the City of Senoia has a 30 years old defectively worded Marijuana Ordinance that they dare not use to prosecute anyone for marijuana possession within the City Limits of Senoia, because if they do, a defense attorney may have a "golden way" to have a great defense for their Client, and the City knows this and dare not ever use the Senoia Marijuana Ordinance; and they spent thousands of dollars defending it at the Supreme Court of Georgia wasting Senoia Taxpayers' money; and the 3 of you have the nerve to say nasty things about me! Shame on you.

Don Rehman

Social Realist
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Frivolous

This is the type of litigation abuse that clogs our courts, adding to needless delays and has the potential to undermine public confidence if not dismissed. I can only hope the city seeks relief in this frivolous case. This person is taking needed tax dollars away from public projects and other quality programs. I'll remember this come election time.

re0046
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Frivolous says who!

Social Realist & thcomments; I didn't realize that you folks were still at it - but I should have known. Please refuse to ever serve on a jury, especially not on a criminal case, as your first words after being seated on the jury would probably be: "Okay, bring in the guilty person for trial".

The Newspaper is a little behind in its stories as I understand much has transpired in the filings in the case. It may all be over maybe next month since I understand that the City filed a Motion to Dismiss and Rehman filed a Motion for Judgment on the Pleadings.

I wonder, suppose by some miracle Rehman wins and the City is forced to spend about 15 minutes rewording the marijuana ordinance and about 150 bucks to get it published - what will you be saying then - attacking the Court System next. Life must be fun for you folks - attacking someone or something day after day. Why not think positive for a change - get a life and be happy again!

By the way, I looked up the case and I understand this is what Rehman said in his latest motion:

9. EPILOGUE: The old adage may be true: “do not make a mountain out of a mole
hill!” The Respondents/Defendants certainly have allegedly already done that. Rehman fears that
this Case at Bar, instead of remaining “below the making of Case Law threshold” as it should, and
disappearing into local Superior Court Records so that everybody who is involved can get on with
Life, is instead likely to become in the future, published Case Law; as it may continue to higher
Judicial Levels. Pushed there by Respondents/Defendants with the unfortunate result of making all
our names etched permanently in “stone” and the City of Senoia “infamous” [after the public stops
laughing and saying: “The Senoia Ordinance says what?”] Thus, what started out as a simple
non-complicated Civil Action (a “mole hill”) becomes regrettably propelled into something much
larger and complex (a “mountain”). The Legal Community and the citizens of other localities then
read about how a local Ordinance in the City of Senoia [46-7] mandates that law abiding male
citizens living in or visiting that City must become criminals and carry one ounce or more of
marijuana on their person when in the City limits of Senoia; and how the current
Local Government of Senoia used all means, including considerable taxpayers’
money for legal expenses to fight one of its citizens, an 81 years old retired U.S.
Army Colonel, so that it could retain an abominably/unconstitutionally worded
Ordinance enacted about 30 years ago, probably by nobody who is still
alive to “defend” it.

Social Realist
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Rehman says what?

The suggestion that this is a mandate is ridiculous. Can you please show me where the Senoia police Dept. has arrested anyone for NOT carrying marijuana? Also, how is it that law abiding females get to smoke marijuana and males don't? Under this preposterous claim I would consider this to be discriminatory in nature and file my own suit.

"Thus, what started out as a simple non-complicated Civil Action (a “mole hill”) becomes regrettably propelled into something much larger and complex (a “mountain”)".

Its nice to see that Rehman identifies himself as the aggressor by stating that he started this entire thing. I am still scratching my head about the non-complicated civil action comment though.

12bTrue
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Frivolous says I

I interact with a number of retired veterans in the local area and I can say that none of these honored men and women act like this guy has. It is my opinion that he has taken a vindictive approach against the city to far.

"Making a mountain out of a mole hill". Remember that it was Rehman that sued the city because he appeared to lack the presentation and delivery skills necessary to sway the city government. This might be why he has never won a case that I know of as pro se.

“He who seeks vengeance must dig two graves one for his enemy & one for himself.”

thcomments
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re0046 awakes

Looked up the ordinance. What I do not get is how someone can miss the specific wording of ‘unlawful for any person to have in his possession’. Doesn’t say ‘to not have’, now does it? Takes a twisted mind or a wannabe lawyer to come up with Rehman’s interpretation. Scary part is you actually defend this farce.

thcomments
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On target, Social Realist!

I will also remember at election time, as this type of nonsense lawsuit serves no real purpose, just a waste. Guess there is no end to what some people will do to get attention. Either that or he is a true believer in the Gospel of Rehman. Man, the lawyer got it right on the 'rambling' description, as least from what I have seen at some of the meetings.

Noticed that other true believer, re0046, hasn't replied to your post. Maybe re0046 finally saw the light and converted. Doubt it, though.